Anticipated arbitration reforms in Australia

The Australian International Arbitration Act 1974 (Cth) (Act) applies to all international arbitration proceedings in Australia. The Civil Law and Justice Legislation Amendment Bill 2017 (Bill) is an omnibus bill which proposes to make certain amendments to the Act (as well as other various Australian legislation).

The International Arbitration Act incorporates the United Nations Commission on International Trade Law’s Model Law on International Commercial Arbitration (Model Law) and, much like other Model Law jurisdictions, contains additional provisions supplementing the Model Law. The proposed amendments to the Act are another effort by Australia to improve and clarify the provisions of the Model Law by addressing issues which have arisen in jurisprudence.

The key proposed change will make it easier for foreign awards to be enforced in Australia. A number of other less significant amendments are also proposed.

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All Australian States and Territories are now Model Law jurisdictions

By introducing the new Commercial Arbitration Act 2017 (ACT), the Australian Capital Territory is the last Australian State to adopt the United Nations Commission on International Trade Law Model Law on International Commercial Arbitration (the Model Law). At the Federal and State level, the Model Law now applies to both international and domestic arbitrations seated in Australia.

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New Zealand considers further amendments to its Arbitration Act

On 9 March 2017, the Arbitration Amendment Bill (Bill) was introduced to the New Zealand Parliament. The Bill proposes to amend the Arbitration Act 1996 (Act), and follows recommendations by the Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ).

The proposed changes include:

  1. permitting the inclusion of arbitration clauses in trust deeds;
  2. greater confidentiality of arbitration-related court proceedings; and
  3. narrowed grounds for the set-aside of an arbitral award.

Other amendments to the Act came into effect on 1 March 2017, which we earlier reported on here.

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Australian Full Federal Court decision highlights the importance of explicitly binding all parties to an arbitration agreement

On 25 January 2017, the Full Federal Court of Australia dismissed Trina Solar US, Inc.’s (Trina) appeal from an earlier decision of a single Federal Court Judge not to exercise residual discretion to refuse Jasmin Solar Pty Ltd (Jasmin) leave to serve an originating application on Trina in the US, while arbitration proceedings were ongoing in New York. As discussed below, the decision highlights the importance of ensuring that all parties to a transaction are bound by the relevant arbitration agreement from the outset of the transaction.

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Sydney Arbitration Week: 21-25 November 2016

Sydney Arbitration Week has commenced with an extensive and interesting programme of arbitration conferences, seminars and presentations. One of the key events is the Fourth International Arbitration Conference which is organised by the Business Law Section of the Law Council of Australia, the Chartered Institute of Arbitrators, Australia branch, and ACICA. Singapore partner Alastair Henderson spoke on recent issues in international arbitration. Later in the week, on Thursday, 24 November, Brenda Horrigan, new Head of International Arbitration (Australia) based in Sydney, will be speaking at an ArbitralWomen breakfast event entitled Arbitration in China and the Asia-Pacific Region. She will also be presenting at a Young ICCA arbitration skills workshop on Friday, 25 November.

Sydney arbitration week has quickly established itself as one of the key event weeks in the Australian arbitration calendar attracting every year senior arbitration practitioners from Australia and abroad. Additional events can be found here: sydney-arbitration-week-2016-calendar-of-events.

For more information, please contact Brenda Horrigan, Head of International Arbitration (Australia), Alastair Henderson, Managing Partner – SE Asia, Anne Hoffmann, Senior Associate – Sydney, Chad Catterwell, Senior Associate – Melbourne, or your usual Herbert Smith Freehills contact.

Brenda Horrigan
Brenda Horrigan
Head of International Arbitration (Australia)
+61 2 9225 5536

Alastair Henderson
Alastair Henderson
Managing Partner - SE Asia
+65 68688058

Anne Hoffmann
Anne Hoffmann
Senior Associate
+61 2 9225 5561

Chad Catterwell
Chad Catterwell
Senior Associate
+61 3 9288 1498